ECMI Panel

Dimitrina Petrova
Director of the European Roma Rights Center

THE ERRC LEGAL STRATEGY TO CHALLENGE RACIAL SEGREGATION AND
DISCRIMINATION IN CZECH SCHOOLS1

The European Roma Rights Center works to contribute to the development
in Central and Eastern Europe of public interest law, which is a conscious
attempt to use law as a tool of social change. A major preoccupation of
the ERRC is litigation in defense of Roma rights. We assume that defending
the legal rights of members of the Roma minority in those countries where
this minority is disadvantaged is a contribution to PUBLIC INTEREST law,
insofar as it challenges that very disadvantaged status. Every time a
Romani person goes to court freely and deliberately, it is a small step in
the direction of a less racist society.

With its limited resources, the ERRC cannot support all the 'Roma
cases' in the region. A strict selection is practised each time we
contribute to litigation on behalf of Roma. Since 1996, ERRC has made
several hundred legal cases involving Romani clients possible. But our
greatest hope lies in anti-discrimination litigation, i.e. the attempt to
challenge in court systemic, entrenched societal discrimination. We go to
court not because we are fond of suing governmental agencies and
institutions. Nor do we believe that bringing lawsuits is the only or the
most effective way to remove race discrimination from a democratic
society. Rather, we want to reaffirm the principle that the right to be
free from race discrimination, including in schooling, is an entitlement
of every individual and the government has an obligation to ensure freedom
from discrimination.

On 15 June 1999, twelve Romani children in Ostrava and their parents,
with the support of several Romani leaders and human rights organisations,
all coordinated by the ERRC, filed an action in the Constitutional Court
of the Czech Republic, challenging and seeking remedies for systematic
racial segregation and discrimination in Czech schools2.

In brief, the twelve claimants asserted that they and numerous other
Romani children had been segregated into special schools for the mentally
deficient because they were Roma. The result of such segregation has been
a denial of equal educational opportunity for most Romani children. Racial
segregation and discrimination in education is illegal. It violates the
Constitution of the Czech Republic, the Czech Charter of Fundamental
Rights and Freedoms, provisions of Czech domestic law, and numerous
binding international treaties including the European Convention on Human
Rights.

The lawsuit in the Constitutional Court was filed against five Ostrava
special school directors, the Ostrava School Bureau and the Ministry of
Education.

The ERRC spent eight months setting up the legal case in Ostrava, the
third biggest city in the Czech Republic3.
I early 1999, there were eight special schools in the district of Ostrava,
responsible, according to the Ostrava School Bureau, for "educating
mentally retarded pupils." There were seventy basic schools for
'normal' pupils. The ERRC collected statistics from every school in the
city of Ostrava. Each special school and each basic school stamped and
signed a document testifying to the exact number of Romani and non-Romani
pupils in their school. The data showed that, whereas only 1.80% of
non-Roma students in Ostrava were in special schools, 50.3% of Ostrava's
Romani students were in special schools. Thus, the proportion of the
Ostrava Romani school population in special schools outnumbered the
proportion of the Ostrava non-Romani school population in special schools
by a ratio of more than twenty-seven to one. Stated differently, Romani
children in Ostrava were more than 27 times as likely to end up in special
schools as were non-Romani children.

The above statistics further indicated that, although Roma represented
less than five percent of all primary school-age students in Ostrava, they
constituted more than fifty percent of the special school population. And
Ostrava is far from an isolated example. Nationwide, as the Czech
government itself concedes, approximately 75% of Romani children
attend special schools, and substantially more than half of all special
school students are Roma4.

The degree of racial segregation revealed by the above statistics was
reproduced within the schools. Thus, of the eight special schools in
Ostrava, Roma amounted to more than 50% of the student population in five
schools, more than 75% of the student population in four schools, more
than 80% in three schools and more than 90% in two schools. In no Ostrava
special school did the Romani proportion of the student body fall below
16% - well over triple the Romani percentage of the Ostrava student
population as a whole.

By contrast, in the Ostrava basic schools, 32 of these schools had not
a single Romani student. In an additional 21 basic schools, there were
Roma students, but they numbered fewer than two percent of the student
population. Thus, in a total of 53 basic schools in Ostrava - 75% of all
basic schools in the district - Roma constitute ed fewer than two percent
of the student population, although Roma as a whole constitute more than
four percent of the overall Ostrava primary school-age student population.
Ostrava's special and basic schools are effectively segregated on the
basis of race. In other words, there exist two separate school systems for
members of different racial groups - special schools for Roma, basic
schools for non-Roma.

At the request of the ERRC, Professor Daniel Reschly, Chair of the
Department of Special Education at Vanderbilt University in the United
States, and one of the most renowned experts in the world on the
overrepresentation of minorities in special education, examined the data
from the Ostrava schools and prepared a report. He stated that the degree
of overrepresentation of Roma students in Ostrava special schools is
unprecedented, and is itself prima facie evidence of racial segregation
and discrimination.

This pattern has not gone unnoticed by international monitoring bodies.
As recently as March 1998, the United Nations Committee on the Elimination
of Racial Discrimination, considering reports of overwhelmingly
disproportionate placement of Romani children in special schools,
condemned the practice as "de facto racial segregation."

As the report of Professor Reschly demonstrates, the size of the
overrepresentation of Roma in special schools in the Czech Republic is
qualitatively higher - indeed, it is of a different dimension - than
analogous measures of overrepresentation of racial minorities in other
contexts. Thus, a recent United States government study of
overrepresentation of racial minorities in special education classes in
the New York City area expressed concern about what it termed “wide
discrepancies“ in special education placements that appeared to be based
on race and ethnicity where “black students were more than twice as
likely as white students to be referred to special education.” In
Ostrava, by contrast, the percentage of Roma in some special schools is
several hundred percent higher than the Romani proportion of the overall
school-age population. Several laws and court cases [in the United States]
testify to the fact that discrimination based on faulty IQ tests or
improper use of tests has occurred in US public schools, but never to the
extent documented by the statistics from Ostrava.

As a result of their segregation in dead-end schools for the
"retarded," the plaintiffs in the ERRC lawsuit, like many other
Romani children in Ostrava and around the nation, have suffered severe
educational, psychological and emotional harm, including the following:

they have been subjected to a curriculum far inferior to that in
basic schools;

they have been effectively denied the opportunity of ever returning
to basic school;

they have been prohibited by law and practice from entrance to
non-vocational secondary educational institutions, with attendant
damage to their opportunities to secure adequate employment5;

they have been stigmatised as "stupid" or
"retarded" with effects that will brand them for life,
including diminished self-esteem and feelings of humiliation,
alienation and lack of self-worth;

they have been forced to study in racially segregated classrooms and
hence denied the benefits of a multi-cultural educational environment.

The presence of such high numbers of Romani children in special schools
is often explained by the fact that they fail the IQ tests administered in
the Educational Psycholigic Centres (the PPP centres). However, a plethora
of indicia demonstrate that the evaluation mechanisms employed to assess
"intelligence" are fatally flawed and unreliable:

Many of the IQ tests have been selected, and their results continue
to be used, even though they have previously been shown to generate
racially-disproportionate effects;

Few, if any, Roma were consulted in the selection or design of the
most commonly used tests;

None of these tests have ever been validated for the purpose of
assessing Romani children in the Czech Republic;

In administering tests to Romani children, insufficient care has
been taken to account for, and overcome predictable cultural,
linguistic and/or other obstacles which often negatively influence the
validity of "intelligence" assessments;

No guidelines effectively circumscribe individual discretion in the
administration of tests and the interpretation of results, leaving the
assessment process vulnerable to influence by racial prejudice,
cultural insensitivity and other irrelevant factors. Indeed, several
psychologists informed the ERRC that there were no standard procedures
for IQ testing, and that each psychologist should simply choose
whichever method they thought appropriate;

In violation of Czech law6,
once assigned to special schools, the plaintiffs, like most other
Romani children, have not been adequately monitored to ensure the
continuing suitability of their placement in the special school.

Nor are other attempts to explain away racial discrimination more
persuasive:

As to alleged language deficiencies: First, no other language minority
in the Czech Republic (e. g. Vietnamese, Polish etc) is
overrepresented in special schools at a comparable level to that of the
Roma. Second, even if there was a language problem, it is no answer to
send Romani children to special schools. Rather, as international law
requires and other European countries do, the government must provide
adequate education capable of addressing the needs of students whose first
language is other than Czech.

The generally lower socio-economic status of Roma does not by itself
explain the statistical disparity in special schools. Many poor ethnic
Czech children study and excel in basic schools. Moreover, any allegedly
greater risk of mental or physical disease among Roma due to malnutrition
and/or inadequate medical care would not explain why Roma are not
similarly overrepresented in schools for the physically disabled.

Finally, parental consent is a false and insufficient justification for
the systematic practice of racial segregation. First of all, not all
parents consent. A number of parents report that, notwithstanding their
failure to consent, their children have been placed in special school. As
importantly, even when granted, parental consent, in order to have legal
effect, must be informed consent. But in Ostrava, as in other parts of the
Czech Republic, numerous parents, including parents of some of the
plaintiffs herein, have not been adequately informed of numerous facts of
great significance, including the following:

that they have a right not to consent;

that, in practice, assignments to special school in Ostrava are
permanent and irrevocable;

that graduates of special schools are effectively prohibited by law
and practice from entrance to non-vocational secondary educational
institutions, with attendant damage to their opportunities to secure
adequate employment.

Indeed, Romani parents, like Czech society as a whole, are all too
often mystified and overwhelmed by intelligence test results and
evaluations by educational "experts". Parents often receive
evaluation reports only at the very meeting with officials where their
consent is sought - thus giving them little or no opportunity to review
and assess the findings - and the reports are frequently communicated
summarily, and/or in professional jargon which is unintelligible to the
layperson.

Finally, a number of Romani parents, including parents of some of the
plaintiffs, have consented to their children's placement in special
schools out of reasonable fear of racial hostility against Roma in basic
schools. A wealth of evidence suggests that Romani children in Ostrava
basic schools routinely encounter racially-offensive speech, racial
exclusion (being forced to sit in the back of the class), and threats of
racial violence on the part of teachers, administrators and non-Roma
students. Indeed in March 1999, an anonymous letter was delivered to one
basic school in Ostrava which threatened to bomb the school unless all
Roma children were told to leave.

Given the crucial nature of the decision at issue, and the permanence
of a school assignment in practice, blaming the parents for consenting
amounts to little more than a post hoc justification for a discriminatory
policy.

The facts concerning the overrepresentation of Romani children in
special schools have long been known. Nor does the present government
vigorously dispute them. Indeed, a number of reform proposals are now
under consideration in various government circles to address what is
widely perceived to be a problem. To date, however, racial discrimination
and segregation persist unchanged. Notwithstanding any current talk of
reform, since well before 1989, Czech school authorities have knowingly
assigned Romani children to special schools in disproportionate numbers,
aware that the vast majority were not mentally deficient. Thus, as far
back as 1984, according to official government statistics, half of all
Romani students were attending special school. The government's
maintenance in force over many years of a policy generating massively
discriminatory effects evidences, at a minimum, a willingness to tolerate
the wholesale denial of educational opportunity to generation after
generation of Romani children. The plaintiffs bringing the lawsuit are no
longer willing to pay this price.

The twelve Plaintiffs filed a case with the Constitutional Court in the
Czech Republic on June 15, 1999 to obtain, cumulatively, the
following remedies:

a judicial finding that they had been the victims of racial
discrimination and segregation in violation of Czech and international
law;

the establishment of a compensatory education fund to pay for the
extra education and training required to compensate the plaintiffs -
and others similarly situated - for the harm caused them by
segregation in special schools, and to enable them to compete
adequately for entrance to non-vocational secondary education; and

an order compelling the Ostrava school board and the Ministry of
Education to end racial segregation in Ostrava schools within three
years and to develop an educational reform plan capable of achieving
racial balance in Ostrava schools within that time.

It was requested that components of the educational reform plan should
include, at a minimum, the following:

anti-racism training for all school teachers and administrators in
Ostrava;

promulgation of guidelines to ensure that assessments of educational
ability are not influenced by racial prejudice;

requirement that parental consent be given in writing and only after
parents have been adequately informed of their rights and of the
consequences of consent;

systematic monitoring of the suitability of special school
assignments;

reorientation of special school curricula to provide for
mainstreaming of most students into basic schools.

On 20 October 1999, the Constitutional Court dismissed the twelve
cases. The reasoning of the Court was as follows:

that the plaintiffs had not proved the existence of race
discrimination. The Constitutional Court stated that they only had the
power to consider the particular circumstances of individual
Plaintiffs, and were not competent to consider evidence
(e. g. statistics) pertaining to the whole cultural and
social context of race discrimination in Ostrava or the Czech Republic7;

that all Plaintiffs and their parents had consented to their
placement to special school and that all the placement decisions were
confirmed on the basis of IQ tests carried out by PPP Centres;

as to the Plaintiffs' allegation that the parents were not informed
as to the consequences of special school, the parents could have
requested such information but failed to do so;

that the Constitutional Court did not have jurisdiction to consider
the Plaintiffs' request that there should be a ban on future race
discrimination, compensatory schooling or that a reform plan be drawn
up by the Ministry of Education and the School Bureau.

The ERRC believes that the judgment of the Constitutional Court is
flawed. In particular, international case law holds that a claim of
discrimination is made out where others in a comparable position to the
Plaintiffs are treated differently and that the difference cannot be
objectively and reasonably justified. ERRC believes that the Plaintiffs
had proved this by statistical evidence of the numbers of Romani children
in special schools in Ostrava, as well as a wide range of expert reports.
The Constitutional Court acknowledged the above legal principle; however,
it then failed to apply the legal test and further failed to give any
reason as to why it did not follow international norms. The Constitutional
Court also failed to comment on the wealth of evidence submitted by the
Plaintiffs: for example there were at least five expert psychological
reports claiming that the system of IQ tests in the Czech Republic to
verify the intelligence of Romani children was flawed and dangerous. There
were statements filed by teachers alleging race discrimination in the
special school system; and a host of other cultural experts also gave
written opinions. All this evidence was ignored by the Constitutional
Court.

In a highly politicised debate, one may understand if not accept a
Constitutional Court’s sidestepping of the issues involved, while still
claiming that the government is responsible. This is evidenced by the
Court’s comment:

'The constitutional court assumes that the relevant authorities of the
Czech Republic shall intensively and effectively deal with the plaintiffs'
proposals. This concerns in particular the proposals 1,3 and 4 of this
resolution8'

In other words, the Constitutional Court appears to find merit in the
Plaintiffs' claims, but refuses to consider them.

Froma our point of view, it is a great shame that the highest court in
the land cannot be relied upon to at least fully consider the evidence in
the case. Following this judgment, the Plaintiffs will now file claims for
race discrimination against the Czech government with the European Court
of Human Rights within the next few months.

Footnotes

1 This paper reflects the work of the
European Roma Rights Center to challenge the patterns of race segregation
of Romani children in Czech special schools. It is a result of the
collective work of the ERRC staff and collaborators, cordinated by ERRC
lawyer Debbie Winterbourne.

2 Usually a Plaintiff would have to exhaust prior
remedies in the lower courts, before filing an action in the
Constitutional Court. There is one exception however, which the
Constitutional Court itself confirmed was applicable in the present case:
where 'the significance of the complaint extends substantially beyond the
personal interests of the complainant.'

3 The results of the ERRC research of the schooling of
Romani children in the Ostrava area have been publicised in the report
„A Special Remedy: Roma and Schools for the Mentally Handicapped in the
Czech Republic“, published by the organisation in June 1999. A Czech
language translation of the report was published simultaneously.

4 Government Resolution No. 279 of 7 April 1999,
"Draft Conception of the Governmental Policy towards the Romani
Community".

5 Recently Monika Horakova MP tabled an amendment to
section 28 of the Schools Law to attempt to rectify this gross inequality.